Month June 2017

Yelp’s Warning: This Dentist Might Sue You For Posting A Negative Review

Leticia Miranda

BuzzFeed News

July 25, 2016

After suffering through tooth pain for some time, Mary Rohs decided to see a dentist. Rohs, a New York resident, scheduled an appointment at Advanced NYC Endodontics with Dr. Nima Dayani on July 16, 2015, to treat the pain.

More than a year later, the fallout from that routine appointment — a negative Yelp review by Rohs, and a lawsuit by Dayani claiming the review was defamatory — continues. And today, Yelp itself got involved, placing a new “consumer alert” on Dr. Dayani’s Yelp page, warning that his business may be “issuing questionable legal threats against reviewers.”

“Consumers have the right to share their opinions about their experiences with businesses,” Yelp said in a blog post announcing the new alerts. “But there will always be a small handful of businesses who mistakenly think it’s a good idea to threaten consumers who exercise their free speech rights.”

Court records say Rohs showed up to Dayani’s office around 11 a.m., filled out intake forms, and was shown into an exam room about 20 minutes later, where she had additional X-rays taken of her mouth.

According to Dayani’s timeline of her visit, Rohs spent about two hours at the office. He argues that he was treating other patients while Rohs sat in the exam room, but he made sure to discuss her dental history in length and take additional X-rays to check out her complaints about cold sensitivity. “By the end of her visit, she had two concurrent definitive diagnoses,” said Dayani in an affidavit. “They were discussed with her and a plan of treatment was formulated.”

But in a Yelp review dated July 27, 2015, Rohs described a frustrating experience. She complained about the “absurdly long wait” at the end of which she said Dayani couldn’t come to some clear diagnosis. “Of the total TWO HOURS FIFTEEN MINUTES I was there, I think I was speaking to Dr. Dayani for about 30 minutes of that whole time,” she wrote. “The rest was spent in his chair, without being offered a water or a magazine.” To make matters worse, she adds, “he couldn’t help determine what was bothering me. I left with a mouth full of pain and a recommendation to see my dentist for a possible cavity.”

Dayani, who says he gets plenty of positive and negative feedback on Yelp and is comfortable with both, says the claims by Rohs weren’t simply a negative review. He alleges her comments amount to defamation, and he sued Rohs two days after the review was posted. It’s an accusation the dentist has levied against at least four previous patients who have written negative reviews about his practice, according to a BuzzFeed News review of court records.

Dayani said false negative reviews like Rohs’ have harmed his practice over time. He said he laid off one part-time staff member because of a drop in business. “[Rohs] accused me of malpractice by saying I didn’t diagnose her,” he said. “When you are publicly accusing someone of malpractice, you are damaging their reputation.”

Rohs declined to comment to BuzzFeed News because the lawsuit is ongoing.

It’s likely that Rohs, like millions of Yelp users, had no idea that a negative review could land her in court. But as online reviews become more critical to companies looking for new business, people have become increasingly vulnerable to such lawsuits, which can chill free speech, consumer advocates told BuzzFeed News.

“When you as a consumer share your honest opinion in some type of public way on Yelp or otherwise, it can mean negative reviews,” Yelp’s vice president of public policy, Luther Lowe, told BuzzFeed News. “Businesses, rather than responding diplomatically or using feedback to improve operations, go out and hire a lawyer wagering that the consumer who wrote this review is more likely to pull the review off than hire a defense attorney and defend themselves. By merely threatening, it doesn’t take going to court to bully the person in order for that business to censor the user.”

The consumer alert Yelp put on Dayani’s page Monday is the third time the company has placed such a warning, Yelp spokesperson Hannah Cheesman told BuzzFeed News.

The company placed its first legal alert on a Texas pet sitting business called Prestigious Pets in May. The pet sitting company sued a customer for violating the company’s nondisparagement, or “gag,” clause when she posted a negative review about the company’s care for her fish.

Superior Moving & Storage in Florida was hit with a legal alert on its page in June after it sued one of its previous customers for defamation. Both cases are ongoing.

Lowe said that businesses sometimes include so-called gag clauses into their terms of service contracts. When the contract is signed, the consumer gives up their ability to publicly criticize the company. Other companies include contract clauses that prohibit consumers from saying anything publicly at all about the company, while others, like Dr. Dayani, may allege defamation and libel in court based on the negative review.

Yelp’s rollout of the consumer alerts comes as Congress considers two bills designed to protect consumers from being sued for posting negative reviews online. California and Maryland are currently the only two states that prohibit the inclusion of gag clauses in contracts.

The “Right to Yelp Bill,” also called the Consumer Review Fairness Act, would ban gag clauses from business contracts, while the SPEAK FREE Act would allow consumers slapped with a lawsuit over an online review to dismiss the claims early on in court. But as the two bills, which have received bipartisan support, make their way through Congress, individual consumers are left to fend for themselves, with few legal precedents for such cases.

“We don’t have a lot of cases to point to so we don’t know how judges view them,” said Paul Levy, an attorney with Public Citizen and defense counsel in the Prestigious Pets case, told BuzzFeed News. “The question becomes did the person who signed the contract understand what they were giving away and did they understand they were giving away free speech? The second point is that it’s so unfair that it’s not able to be enforced.”

In two such cases, the suing companies never appeared in court to back up their claims. A Utah couple sued KlearGear in 2012, claiming they did not owe a debt for violating its terms of service by writing a negative review, but the company never appeared in court and couple received a default judgment including over $300,000 in damages. In 2014, a Wisconsin woman a lawsuit against Accessory Outlet after they demanded she pay $250 for violating its terms of sale. The company never appeared in court to defend its claims.

In one case, a dentist, who faced a class-action lawsuit by former patients who signed a gag clause to receive care, moved abroad before she could defend her breach of contract claims in court in 2012.

“The harms generally aren’t harms that are enforced in court,” Scott Michelman, a senior staff attorney with the American Civil Liberties Union who has previously defended consumers in four gag-clause cases, told BuzzFeed News. “Instead they are the harms of the consumers that are bullied by corporations in taking down critical reviews and also the harms of consumers who are chilled by these clauses from expressing their opinions.”

Yelp has found itself at the center of a similar lawsuit in California where a personal injury law firm sued a former client after she posted three reviews criticizing the company. Hassell Law Group accused Ava Bird of defamation after she refused to remove “factual inaccuracies and defamatory remarks” from Yelp reviews she posted in January, February, and April 2013. A lower court sided with the law firm in 2014 and required Bird to take down the comments. When she refused, the court held Yelp responsible for removing the comments. In June, an appeals court agreed that Yelp must remove the comments, but the company has yet to comply, arguing it is a third party in the case.

Dayani has sued at least four previous patients over online reviews, according to a BuzzFeed review of New York County Civil court records through 2012. He sued a patient in 2012 for defamation and $75,000 in damages for writing a negative review on Yelp. The man removed the review after he was slapped with the lawsuit. Neither the patient nor Dayani appeared in court and the case was dismissed.

In June 2013, Dayani sued another patient claiming $50,000 in damages after he posted a review on Yelp complaining that the dentist had overcharged him for a root canal. The patient and Dayani settled the claim in August 2013.

Dayani sued a Yelp reviewer in November 2012 who he said used a fake name to post a negative review about her experience where she called him “rude, callous, abhorrent.” Dayani claimed the review amounted to $25,000 in damages. The defendant, “Jane Doe,” never responded to his complaint.

In June 2015, Dayani sued a woman who wrote a Google review claiming that he suggested she should undergo two root canals during a visit. She said she sought out a second opinion from another dentist who gave her a cavity filling and replaced a crown, which treated her tooth pain. “I am so happy that I didn’t get treated in this place,” she wrote. “If I did, I would have paid more than three thousand dollars for the treatment that I didn’t need at all.” Dayani is seeking a total of $100,000 from the woman for damages, according to court records.

Dayani does have a number of good reviews online from people who have described him as “thorough and knowledgeable.” “After doing a lot of research I chose Dr. Dayani,” said one Yelp reviewer called Eva H. “I couldn’t be happier. He is gentle, thorough, and highly professional. His staff is excellent. He is the best and I felt as relaxed as I will ever be at a dental appointment.”

Dayani insists that he only goes after online reviewers who post false information. He offered BuzzFeed News the opportunity to visit his office and review records related to the cases where he has sued patients to prove their allegations are false. BuzzFeed News declined.

He said he has adjusted his practice and opened a larger office after reading a number of negative reviews, including an emergency patient who complained in a one-star Google review about a long wait time at his office. However, the review does not appear to be online anymore.

When asked if he believes the lawsuits escalate a situation that could be resolved through other means than litigation, he insisted that he believes in free speech but draws the line at falsehoods. “When somebody writes lies about you with intent to deliver a damage to you and livelihood, that is defamatory,” he said. “I’m not Halliburton. A lie can do tremendous damage and can come at the expense of doctors and staff.” “If there are people out there doing it out of spite and not willing to correct a known lie, let an impartial judge decide,” he added. “I’m encouraging anyone to write a comment they think is correct and justifiable.”

During Lyn Votour’s struggle against bone cancer and a cascade of complications, her husband slept with her in the intensive care unit for nine weeks. Back home in Central Massachusetts, he changed her bandages, replaced her feeding tube, and shielded her from debt collectors.

And as she lay dying on the hospital bed in their living room, he snuggled beside her, holding her hand. They had been married 26 years, and his wife’s death at age 46 overpowered Gary Votour with doubt and rage. He was furious at himself for allowing her to have surgery, during which she had a stroke, at friends who didn’t visit, and at his wife’s neurosurgeon.

Believing that airing his concerns would help him heal, Votour requested a meeting with the surgeon at Brigham and Women’s Hospital. When the surgeon turned him down, Votour’s psychiatrist urged him to write her an “open letter’’ online, detailing his concerns about his wife’s medical care.

He got a response, just not the one he had hoped for. Last month, the surgeon, Dr. Sagun Tuli, sued Votour and the owner of the website for defamation in Middlesex Superior Court, demanding $100,000 for the damage she said the blog post had done to her career. Her lawyer, David Rich of Boston, said Votour’s blog popped up on the first page of Google search results for Tuli, who now works at Metro West Medical Center in Framingham. Votour has since removed the blog post. “It’s difficult to believe we have a legal system that allows people to be sued for expressing their grief,’’ Votour said in an interview.

Tuli’s lawsuit is part of a gathering wave of claims brought by doctors against former patients, and sometimes their relatives, over negative ratings and reviews they have posted on the Internet, lawyers say.

Not only have personal blogs proliferated, but consumer sites such as Yelp and Angie’s List allow patients to rate and comment on their physicians. These sites are viewed by thousands of people who increasingly rely on them to choose doctors.

David Ardia, Co-Director of the Center for Media Law and Policy at the University of North Carolina, said the Internet “has realigned the power structure that existed between doctors and patients,’’ giving patients far more influence than they have ever had. “The Web is just chock-full of people commenting on their experiences. Doctors have reacted with a great deal of hostility toward this.’’

A quick perusal of Yelp reveals the kind of comments that are riling doctors. “Fast, Central, Misguided,” said one comment about a Copley Square practice. “Decent for your quick fix med tricks but leaves a bit to be desired in taking the time to truly understand the ailment.” Wrote another commenter about a Fenway office: “I feel much more like a number than a human being there.”

The Digital Media Project at Harvard University tracks lawsuits filed against patients and others for online comments. Its website includes seven such cases filed over the past five years or so, though it’s not a comprehensive list. In some, patients took down their negative comments. In others, judges dismissed the suit, ruling that patients’ comments were protected under the First Amendment guarantee of free speech.

In one 2011 case, Dr. Aaron Filler, a neurosurgeon, sued a former patient in a Los Angeles court for posting negative comments about him on rating sites such as RateMDs.com, including that he posed an unusually high risk of death to patients. A judge dismissed Filler’s suit, deciding that the patient was exercising free speech on a public issue, and ordered the doctor to pay $50,000 in legal fees.

Doctors feel they are at a disadvantage in responding to negative reviews because medical privacy laws forbid them from discussing a patient’s care in public — a limitation that hotels, restaurants, and other often-rated businesses and professionals don’t face. They also worry that their explanations could be used against them in a malpractice suit — although a new Massachusetts law protects doctors’ apologies.

Dr. Richard Aghababian, president of the Massachusetts Medical Society, believes rating websites present a skewed picture of doctors because patients are more likely to post about negative experiences — even though they may be rare. “For surgeons, their reputation is very important,” he said. “We don’t want to discourage them from taking on really tough cases because they don’t want to ruin their ratings.’’

Companies have cropped up to help doctors fight back. Physicians Reputation Defender specializes in disputing negative online ratings. Medical Justice gathers reviews from a doctor’s patients and posts them on the Internet.

Ultimately, some doctors file lawsuits to try to protect their names, despite what Ardia calls “the reputational cost’’ of going to court, a step that often brings even more attention to the negative review.

While the rating sites are generally immune from libel claims, said Sandra Baron, executive director of the Media Law Resource Center in New York, individuals who post comments are not. In general for a doctor to win such a suit, she said, the statements made by the patient have to be shown to be false and to have hurt the doctor’s reputation.

Most lawsuits filed by doctors against patients or their families arise from a soured relationship, and that certainly seems true for the Votours and Tuli.

Lyn Votour was diagnosed with a rare bone cancer after an accident in 2005. In March 2005, Lyn Votour was driving to her job counseling troubled youth when her car skidded on black ice and crashed. An ambulance rushed her to a local hospital, and tests on her neck eventually discovered a rare bone cancer unrelated to the accident. An oncologist at Brigham referred her to Tuli to have some of her vertebrae removed, a complicated and rare operation. During a second surgery, Votour suffered a stroke that paralyzed the left side of her body.

The Votours and Tuli seemed to work well together at first. Tuli, for example, supported allowing Gary Votour to sleep in the ICU for an extended period, an unusual practice. But after Lyn Votour was discharged to Spaulding Rehabilitation Hospital, the couple’s relationship with Tuli deteriorated, according to Gary Votour. His wife was eventually discharged to the couple’s home in Barre in July 2006 with a feeding tube and a breathing tube.

More than two years later, depressed and in pain, she asked her husband to remove her feeding tube, he said. Soon she stopped talking, he wrote on the blog, except for “one brief lucid moment when she thanked me for letting her go and made me promise to move on with my life and try to find happiness again.’’ She died days later, in October 2008. “I was not doing well with grief,’’ he said in an interview. “I wanted to go back and talk to Dr. Tuli about some questions that were bothering me. I really wanted to ask her why don’t doctors follow up after discharge. I wanted to understand why doctors just wash their hands after discharge.’’

Votour contacted a patient advocate at the Brigham, who said she would arrange a meeting. But the advocate called back and said Tuli had declined to meet, Votour said. Rich, her attorney, said a Brigham lawyer told Tuli not to meet with Votour.

A hospital spokeswoman, Erin McDonough, said in a written statement that a log kept by the patient advocate “documents that Dr. Tuli indicated that she was not comfortable meeting with Mr. Votour. . . . The hospital’s records clearly indicate it was her decision.’’ The hospital lawyer said she never spoke to Tuli about Votour’s request, McDonough said.

Frustrated, Votour put up his blog in March 2010 and e-mailed a link to Tuli and other Brigham staff who had cared for his wife.In his post, Votour criticized Tuli for not visiting his wife at Spaulding, according to a copy of the blog included in the lawsuit. He wrote that the surgeon called their home once after her discharge but did not offer to help coordinate her care, and that Spaulding doctors and others urged him to file a lawsuit against Tuli. At another point, he said he lost his wife “not to cancer but to indifference and egotism.’’

In the lawsuit, Tuli said these statements are false and defamatory. In written comments, Rich said that patient privacy laws prevent Tuli from discussing the reasons for the stroke, but according to the blog, she told the Votours it was caused by a preexisting tear in the heart.

Rich wrote that Votour completely misunderstood how discharge planning works at large hospitals. Tuli, Rich said, did not have privileges to treat his wife at another hospital and they lived too far away for her to provide follow-up care.

Rich said Tuli was surprised by the blog, because Votour had previously written e-mails complimenting her care of his wife. After Lyn Votour’s stroke, Tuli “spent 12 hours with Votour and was completely responsive and sympathetic,’’ Rich said.

Tuli, who won a $1.6 million jury award against the Brigham and the chief of neurosurgery in 2009 for gender discrimination, left the hospital in 2011.

Rich called the lawsuit a last resort — lawyers for Tuli initially asked Gary Votour to take down his blog in 2010. Votour took down the blog in February. He said his client hopes to “work out some amicable solution.’’ But she wants Votour to sign an agreement not to write about her again — something he has refused to do.

People have expressed concern to Tuli about what they read on Votour’s blog, Rich said, and some have certainly been dissuaded from seeking her out as a surgeon. “If you are thinking of hiring someone or working with someone, the first thing you do is Google her name,’’ he said.

In the end, Ardia said, doctors will not find satisfaction through the courts, but by using the Internet to their advantage — encouraging happy patients to write online reviews and trying to address the concerns of those who are not. “The ultimate solution is engagement and realizing that not every patient is going to be happy.’’

Votour, who still owes $25,000 to credit card companies for expenses related to his wife’s care, has moved to Columbia, S.C., where he earned a master’s degree in hospital administration. He now works as a patient advocacy consultant. He named his company Fierce Advocacy.

Health care quality reporting is not a new phenomenon, and information about patient experiences and satisfaction is available in many forms. For example, as part of its “Hospital Compare” initiative, the federal government publishes hospital patient experience ratings based on criteria like “nurses’ and physicians’ communication skills, pain control, cleanliness, and whether the patient would recommend the hospital to friends and family.” Some state governments, nonprofit organizations, and health insurers publish similar reports of patient satisfaction based on a variety of subjective and objective criteria. According to one commentator, this trend toward quality reporting has increased due to factors like greater attention to health care quality concerns and cheaper, more widespread access to technology.

Consumers are increasingly going online to inform their health care decisions. As of 2009, more than forty websites like Angie’s List, Yelp, and RateMDs offer reviews of medical care providers. Even Zagat, best known for its travel and leisure guides, entered the business of physician reviews in 2008. In addition to providing basic information about a provider’s licensure, office locations, and disciplinary record, these physician-review websites allow patients to rate their experiences—often anonymously—on criteria like the physician’s punctuality, knowledge, bedside manner, and even staff friendliness. Based on these categorical ratings, review sites calculate an overall “score” for the provider, usually represented numerically (e.g., “8/10” or “four stars out of five”). Some review sites allow patients to supplement their grades with comments or narratives while others compile only numerical data.

Commentators debate the usefulness and legitimacy of physician-review sites. For example, while one analyst argues that these websites can improve standards of care by physicians by providing timely and detailed feedback to providers, another responds that the anonymous and unscientific data gleaned from these sites is worthless or even detrimental. The American Medical Association (AMA) and some states’ attorneys general have expressed concerns that these ratings merely reflect disgruntled patients’ venting and can be misleading. Similarly, the American Academy of Family Physicians has warned that “choosing a physician only according to consumer ratings can deprive patients of high quality medical care, particularly if those ratings are based on unrecognized and unvoiced anger or unjustified allegiance.”

So how do physicians fare on these websites? For all the wrath these sites have provoked, the result is surprising: studies show that doctor ratings are overwhelmingly positive. For example, one study of thirty three physician-rating websites found that 88 percent of reviews were positive, while 6 percent were negative, and 6 percent were neutral. Another study analyzing 15,000 reviews from 2004–2010 on the site DrScore.com found the average doctor rating was 9.3 out of 10, with an astonishing 70 percent of reviewed physicians receiving perfect scores.

Although review sites are increasingly popular, they may not yet factor significantly in consumers’ health care purchasing decisions. A 2011 study conducted by the Pew Research Center’s Internet & American Life Project concluded that physician-review sites “have not yet become health care decision-making tools for most consumers.” Indeed, only 16 percent of Internet users have consulted online rankings or reviews of doctors or other providers, while 4 percent of Internet users have posted an online review of a doctor. Another study, however, reports higher figures: that 37 percent of adults have consulted physician-rating sites, and 7 percent of people who sought information about their provider posted a review online.

Based on these findings, it seems strange that doctors and medical organizations have reacted so strongly to online reviews. There may be several explanations for their discomfort. While provider reviews on the whole are positive, individual doctors may still dislike negative ratings. Obviously, no one wants to be criticized, especially on such a public and enduring forum as the Internet. Reviews of individual doctors also tend to be spread out over different websites. For example, a physician who has four ratings on RateMDs, two of vwhich are negative and neutral, may feel that his practice is unfairly represented to those who consult only that website. And the subjective nature of review sites may particularly rankle scientifically minded medical professionals.

But there may be more intriguing practical and philosophical issues at play: online reviews might present harms and challenges that uniquely affect the medical profession. First, patient privacy protections restrict how and when doctors can respond to critical reviews. Second, doctors may believe that they are unfairly criticized by patients who lack the specialized medical knowledge to comment meaningfully on their treatment. Third, certain professional and societal factors may intensify the sting of patient criticisms.

While some review websites like Yelp allow critiqued businesses to respond directly to criticism, physicians may not be able to post detailed rebuttals because of patient-privacy protections under state law and the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Specifically, the HIPAA Privacy Rule protects all “individually identifiable health information” held or transmitted by a covered entity or its business associate, in any form or media, whether electronic, paper, or oral; this information is termed “protected health information (PHI).” Patients may freely self-disclose PHI—and many do when they volunteer detailed accounts of their care online. But this does not mean that a patient automatically authorizes the doctor to discuss all aspects of the patient’s treatment. If a physician discusses or transmits PHI without a patient’s consent, she faces penalties of up to $50,000 per violation depending on its nature and extent and resulting harm. Thus, while a hotel manager may be able to mitigate a negative review by directly and thoroughly responding to a critical review, a physician risks violating a patient’s privacy rights if she provides specific details about a reviewer-patient’s care. In the words of one chagrined dentist, “Patients get to lie on Yelp, but because of HIPAA, we cannot tell the truth about the patient and what really happened.”

Although HIPAA’s privacy safeguards uniquely restrict a physician’s ability to thoroughly respond to poor reviews, doctors may still effectively respond to criticisms with general information about their practices and procedures. Thus, a physician can respond to complaints about parking, staff, or billing structure without fear of violating a patient’s privacy. According to the founder of one physician-review website, complaints about wait times are a “huge issue,” as are comments about poor bedside manner and curtness. Physicians may even respond to specific criticisms about medical care by describing their practice’s procedures and standard of care without confirming or denying that a reviewer is a patient.

Physicians may feel that they are unfairly maligned by patients who lack the specialized medical knowledge to comment objectively on their treatment. Some commentators argue that the typical lay patient cannot—and therefore should not—make technical assessments that others might rely on.

Yet studies have revealed that patients’ online reviews are not typically objective, technical critiques; rather, they focus heavily on nonclinical factors like the amount of time the doctor spends with them, parking accommodations, and ease of scheduling appointments. For example, one study found a very strong correlation between online patient satisfaction ratings and shorter office wait times. Available data indicates that patients simply are not evaluating “surgical technique or diagnostic abilities” despite what many doctors seem to fear. While these types of findings naturally raise arguments about the value of subjective “customer service” focused reviews, physician-review websites are best understood as just one resource that consumers can consult when making health care decisions, alongside other objective quality measures like aggregated clinical data. The subjective experience does matter to patients, and patient reviews can capture things that do not show up well in objective statistics; for example, whether the doctor includes the patient as a partner indecision-making or whether the office staff is rude or unhelpful.

Opponents of review sites may also argue that these sites ignore the collaborative nature of medical care. For example, if a non-adherent patient fails to be responsible in her own care, the physician should not be blamed for a poor treatment outcome. Furthermore, because receiving shoddy health care can have devastating consequences on a patient’s well-being, consumers may be unusually sensitive to any negative comments about providers.

While non-adherent patients are an unfortunate reality, doctors should not fear the occasional negative review. Studies indicate that some mediocre or negative ratings actually improve consumer confidence in reviews because mixed reviews are perceived as more genuine.

Physicians must also trust that prospective patients will be savvy consumers of review data who can decide what is trustworthy. And even if patients are especially impressionable to health review data, physicians should embrace review sites and proactively use them as a tool to actively increase business and respond to patients’ concerns. Today, “physicians compete for patients just as business people compete for customers.” Doctors disadvantage their practices when they ignore anecdotal reviews or passively wait to receive feedback.

A significant component of medical education aspires to make doctors skillful, knowledgeable, and moral practitioners. Reflecting this goal, Principle 1 of the AMA’s Principles of Medical Ethics provides that a physician “shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights.” Principles 2 and 8 further state that a physician should “uphold the standards of professionalism, be honest in all professional interactions[,]” and “regard responsibility to the patient as paramount.” Beneficence and nonmaleficence, the respective duties to do good and to do no harm, are foundational principles in the ethos of medicine. When a patient alleges in a review that a doctor harmed her, whether through a medical error or even an offensive bedside manner, that criticism strikes at the heart of the doctor’s professional integrity. Even unflattering remarks about staff friendliness or parking accommodations may be interpreted to impugn a physician’s ability to run her practice well.

As discussed below, however, doctors should recognize that critical patient reviews, although sometimes uncomfortable to read, can give them direct insights into their patients’ preferences and priorities. Doctors should interpret these criticisms constructively and consider whether changing certain behaviors or aspects of their practices would be in their best financial and professional interests.

With the rise of physician-review websites, doctors have increasingly been suing and threatening to sue their patients over their reviews. This section explores defamation law.

Defamation law attempts to balance a plaintiff’s interest in an untarnished reputation against a defendant’s First Amendment right to freedom of speech. Many legal experts and health care professionals believe that the tort of defamation is the proper legal response to addressing injurious or false reviews. On the other hand, defamation law frequently skews toward the protection of free speech, and cases are notoriously difficult for plaintiffs to win: one study found that only 13 percent of defamation plaintiffs prevail. This is primarily for two reasons. First, plaintiffs must meet a high prima-facie burden in demonstrating defamation. Second, a defendant can escape liability through a “panoply of privileges and affirmative defenses.” Historically complex, defamation law becomes even more complicated when applied to online reviews, implicating issues like author anonymity and questions of service provider liability.

Defamation is a creature of state law, so the precise requirements vary from state to state. However, a cause of action for defamation generally requires: (1) a false and defamatory statement concerning another; (2) an unprivileged communication of that statement to a third party; (3) fault amounting to at least negligence on the part of the speaker; and (4) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by the publication (defamation per quod). A communication is defamatory if it “tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Courts consider the circumstances surrounding the communication and evaluate its effect upon the average reader or listener.

Analysis depends on whether the statement was slander (oral defamation) or libel (written defamation). At common law, if the communication was slanderous, the plaintiff must prove that the statement caused economic loss. On the other hand, if the communication was libelous, the plaintiff ordinarily does not have to prove economic harm. The rationale behind this distinction is the permanence of written communications as opposed to the ephemeral qualities of spoken ones. In all cases challenging online patient reviews, plaintiff physicians have proceeded under the theory of libel.

Certain categories of speech are so plainly defamatory that they do not require a plaintiff to show any special (i.e., economic) harm. Injury to reputation is presumed merely from the fact of publication. A statement can be defamatory per se if it imputes the commission of a crime or “incompetence, incapacity, or unfitness in the performance of [one’s] trade, occupation or profession.” Thus, statements that a physician acted unprofessionally or unethically are presumptively defamatory. For example, in Nasr v. Connecticut General Life Insurance Company, the court upheld the per se defamatory characterization of slanderous statements that a physician was a “quack,” operated a “racket,” prescribed ineffective treatments, and was “under investigation.” Similarly, in Fuste v. Riverside Healthcare Association, Inc. , the court held that slanderous statements that two doctors “abandoned” their patients and that there were “concerns about their competence” prejudiced the doctors in the practice of their profession and were defamatory per se.

While critical patient reviews might inherently seem defamatory per se, that is not necessarily the case: “a mere expression of dissatisfaction with a person’s professional performance is not defamatory per se.” As discussed below, the powerful defenses of opinion and substantial truth can also shield patient-reviewers from liability for statements criticizing a doctor’s fitness as a practitioner.

When a plaintiff is a private citizen defamed about a private matter, the defendant must be at least negligent with respect to the truth of the statements. A defendant is generally negligent when she fails to act reasonably in attempting to learn whether a statement is true or false. On the other hand, plaintiffs who are “public figures” must meet an additional burden, showing that the defamer acted with “actual malice.” To prove actual malice, the plaintiff must show that the defendant acted with knowledge of falsity or reckless disregard for the truth.

The fact that an individual practices medicine does not automatically make her a public figure, though she may become one if she holds herself out as a pioneer, “seek[s] to develop and advance a new treatment option,” or seeks publicity or injects herself into a matter of public controversy. For example, in Rodriguez-Erdmann v. Ravenswood Hospital Medical Center, a physician was denied staff membership at the hospital where he worked. After the physician held several press conferences alleging that he was discharged in retaliation for “speaking out about problems of malpractice,” the hospital circulated a memo stating that the physician was merely acting out of disappointment. In the resulting libel suit, the court held that the doctor was a public figure in this instance because he “thrust himself to the forefront of the controversial issue of medical malpractice.” Because the physician could not prove actual malice, the court affirmed dismissal of his suit. Thus, a “public figure” physician must satisfy the higher burden of proving actual malice to sue a patient for a review implicating that status.

Physician-review websites frequently allow users to post their impressions without requiring any personally identifying information. Because the First Amendment protects the rights of individuals to speak anonymously, even on the Internet, physicians may have difficulty identifying anonymous and pseudonymous defendants. A doctor may have to issue a special production of evidence subpoena to a website administrator or web host to compel them to reveal identifying information about an anonymous poster. Once the poster is “unmasked,” the defamation suit can proceed as usual. Courts, however, have expressed discomfort with issuing these types of subpoenas, citing the potential of impermissibly chilling free speech.

There is no clear standard that courts apply when asked to identify an anonymous defamation defendant on the Internet. One authority, however, is Dendrite International, Inc. v. Doe No. 3, in which the court articulated a four-part test for when an anonymous poster’s identity may be revealed. First, the plaintiff must make an effort to notify the anonymous poster that an order for disclosure is pending against him and to allow the anonymous defendant reasonable time to oppose the application. Second, the plaintiff must specifically identify the allegedly defamatory material. Third, the plaintiff must present a prima facie case of defamation against the anonymous poster. Fourth, the court must balance the defendant’s First Amendment right to anonymous free speech against the strength of the plaintiff’s prima facie case and the need for the defendant’s identity to be revealed for the case to go forward.

Even if a physician can successfully establish a prima-facie case of defamation, a complex set of protections and affirmative defenses may shield a poster’s online comments. Aggrieved doctors are further stymied by the Communications Decency Act (CDA), which protects websites that host disparaging comments. Finally, the threat of anti-SLAPP (Strategic Lawsuits Against Public Participation) suits and negative publicity resulting from a defamation suit may effectively be defenses by barring or deterring a physician from bringing a defamation suit.

In an online defamation case, both the author of the defamatory statements and the operator of the service displaying the defamatory material are potential defendants. For economic reasons, plaintiffs might prefer to sue Internet Service Providers (ISPs) and website administrators rather than individual authors who are less likely to have “deep pockets.” However, Section 230 of the CDA largely immunizes ISPs from liability for content posted on their websites. Specifically, subsection 230(c)(1) provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher of any information provided by another information content provider.” In other words, even if a website allows users to post potentially actionable content, these sites are immunized from liability. As a result, “nearly all of the cases interpreting Section 230 defenses have found ISPs immune.” However, ISPs or site administrators may still be liable if they “interact[] with the content or its source” or are “responsible for the creation or development of the content.” Perhaps the clearest example of this exception is editing user comments: if a review website alters a user’s statements in such a way that they can be read defamatorily, the site loses Section 230 immunity.

In Reit v. Yelp!, Inc., dentist Glenn Reit sought a preliminary injunction requiring the consumer review website Yelp to remove an anonymous comment alleging that that his office was “small,” “old,” and “smelly” and that the equipment was “old and dirty.” Reit blamed the post for reducing the number of appointment calls he received from ten to fifteen per day to four or five per day. The court denied Reit’s request for an injunction, finding that Yelp was an “internet computer service” within the contemplation of Section 230 and therefore free to display the post. *

Although it is largely fruitless for doctors to sue review websites directly, physicians still have a strong interest in pursuing the individual authors of offensive material. Aside from the obvious desire to remove reviews, a physician may act to recover damages or for personal vindication. We turn now to the defenses available to the individual authors of defamatory content, including truth and opinion.

It is axiomatic that truth is an absolute defense to defamation. To be clear, however, a defendant does not have to prove that a statement is entirely true to escape liability, only that it is substantially true. Courts may “overlook[] minor inaccuracies” in allegedly defamatory material and focus instead on the overall gist of a statement when considering its veracity.

But even true statements can be defamatory when they are misleading or mischaracterize the plaintiff. For example, in Wong v. Tai Jing, a father posted a scathing review of his child’s dentist on Yelp. In his post, he implied that the dentist dangerously administered general anesthesia, failed to disclose that the child’s fillings contained mercury (a potentially dangerous heavy metal), and misdiagnosed the child. While the dentist did in fact apply general anesthesia, implant a filling with mercury, and did not discover all of the child’s cavities, the court found that the father’s review deliberately omitted the legitimate reasons underlying these circumstances. Thus, even though the review was technically factual, its accusatory tone and misleading implications transformed it into libel. **

The defense of opinion is another privilege that may be remarkably difficult for an aggrieved physician to overcome. As a threshold matter, courts must determine whether allegedly defamatory speech asserts facts or opinions. The First Amendment protects pure statements of opinion, no matter how derogatory. On the other hand, a disparaging statement may be actionable if an average reader or listener might reasonably believe that it is an assertion of fact. Courts look to the nature and context of a statement to determine if it is a protected opinion. A statement that “appears in a place usually devoted to, or in a manner usually thought of as representing personal viewpoints, is . . . likely to be understood—and deemed by a court—to be nonactionable opinion.” A comment is not usually defamatory when it is hyperbolic, wildly offensive, or consists of “loose, figurative language.”

Thus, a physician who believes that she is defamed on a review site must show that an offending comment could reasonably be interpreted as factual. Ironically, outrageous accusations that might offend a physician the most are likely protected because of their hyperbolic quality. For example, a statement maligning a physician as “the biggest idiot I have ever met” likely would be nonactionable.

Physicians who sue a patient for posting a negative review may also be subject to an anti-SLAPP (Strategic Lawsuits Against Public Participation) motion to strike the complaint on the grounds that the online posting is protected public interest speech. Over half of the states have adopted anti-SLAPP legislation to curb frivolous lawsuits that defamation plaintiffs frequently bring to harass, bully, and intimidate critics into silence. Although these laws vary from state to state, they share two key features. First, they provide an expedited procedure to short-circuit SLAPPs, conserving all parties’ time and resources. Second, successful defendants are awarded legal defense costs. Thus, facing the double risks of a dismissed suit and having to pay the defendant’s fees, physicians must think carefully about the merits of a case before bringing a potential SLAPP.

Finally, one of the most significant challenges facing potential online defamation plaintiffs is a phenomenon humorously referred to as the “Streisand Effect.” In 2003, Barbra Streisand unsuccessfully attempted to sue photographers for $50 million to remove an aerial photograph of her mansion from the Internet. Before Streisand filed the suit (claiming invasion of privacy), hardly anyone knew the picture existed; after she filed the suit, the photo was downloaded and viewed 420,000 times. Thus, the Streisand Effect “covers those situations where the threat of legal action has brought publicity to the information sought to be suppressed.” When physicians choose to pursue an online defamation case, they risk calling attention to a statement that might otherwise go unnoticed; this heightened publicity is exactly the opposite of what the physicians want. In the words of one commentator, “the remedy may be worse than the problem.”

Indeed, the Streisand Effect has played out with surprising ferocity when physicians have attempted to suppress negative online reviews. For example, in 2010, a Minnesota physician filed a $50,000 defamation lawsuit against the son of a former patient. Angered by the physician’s alleged mistreatment of his eighty-five-year-old father, the son posted several negative reviews online that criticized the doctor’s poor bedside manner, disinterested attitude, and insensitivity. After the doctor filed suit, news of the litigation reached Reddit.com, a popular social media website, where readers promptly set out to excoriate the doctor online. As a result, Reddit users churned out over a hundred scathing comments across the web about the physician and the lawsuit. ***

For a physician who simply wants to remove a review she believes or knows is unfair or untrue, resorting to defamation law can be a nightmare. It is frustratingly complex, with a dizzying array of factors to juggle. Physicians may have difficulty establishing a prima-facie case, and even if they can, defendants may escape liability through a vast network of defenses and privileges. Litigation may attract publicity to an otherwise unremarkable claim. And practically speaking, lawyers are rarely willing to offer a contingency fee arrangement in defamation practice; many patient-reviewers will likely be judgment-proof as well.

This Note does not call for physicians to entirely abandon defamation law. For example, if a review falsely alleges serious misconduct, a doctor should consider filing suit. But in less extreme cases, this Note advocates looking to defamation as a measure of true last resort, and only after careful and realistic consideration of the case’s merits.

A Florida plastic surgeon thinks anonymous comments made by a former patient on a physician rating website crossed the line between opinion and malicious intent, and he’s fighting back with a defamation lawsuit.

Armando Soto, MD, reacted strongly to postings made on RateMDs.com about a botched breast augmentation procedure he allegedly performed in 2011, according to a published report. He wants the comments removed and is seeking $49,000 in damages.

His defamation lawsuit was originally filed in Virginia because that’s where he and his attorney, Domingo Rivera, thought the complaints originated. However, he plans to drop that suit and file in Florida since subsequently discovering a school teacher in his home state might have posted the negative comments. He believes the teacher posed as several unhappy patients, adding numerous damning remarks on the site.

Mr. Rivera says his client’s lawsuit addresses the difference between opinion and defamatory speech. For example, a post stating that Dr. Soto did “a poor job” is opinion, he says, while comments about breast unevenness or extra scarring are defamatory if they are not true. He believes unhappy patients should return to their physicians to have post-op issues fixed, and accuses the patient in this case of conducting a vendetta against Dr. Soto’s reputation, which the lawsuit is angling to repair and protect.

David Muraskin, a Public Citizen attorney representing the patient, said in the news report that the lawsuit could squelch freedom of speech. He could not be reached for additional comment.

A Florida plastic surgeon has filed a lawsuit against one of his patients for posting an unfavorable review of him online.

Dr. Armando Soto said he filed the suit to protect his reputation and his business. The unnamed patient allegedly trashed his services online at the website “Rate MDs,” posting complaints about a breast surgery.

Attorney Larry Walters said although the patient may be covered by free speech laws, this protection will only apply if the criticism is valid. “You cannot cross the line and make false statement of fact about a person that causes damages to that person,” he said.

Dr. Soto said he has been in contact with the patient he filed the suit against, and they are trying to work it out. He said he believes his suit against the patient could soon be dropped.

I read a story about a Doctor in Orlando that is suing a patient. This brought up many interesting questions and a few conversations with plastic surgeons late last night concerning medical reputation management.

How much damage can be caused by just a few bad reviews?

I believe it is said, if you have a happy customer, they will tell one person, if you have a disgruntled customer, they will tell 20. This has changed quite a bit as we all know. Today, I would estimate that maybe 1 out of 100 happy customers will post a review for you online, without being asked to do so. Since this customer is “happy,” there will be a positive review. On the other hand, one out of seven unhappy customers will post a negative review online.

Five hundred happy patients turns into 5 positive reviews. Thirty unhappy patients turn into 4-5 negative reviews. Keep in mind the multiplier is huge here, as hundreds if not thousands of people will read these reviews each month.

Who reads reviews anyways?

Over the last few months I have spent quite a bit of time looking at reviews for various businesses. I am getting married in June, and planning the wedding has led me to read a large number of online reviews. I have looked at limousine company reviews. It’s a shiny car, but will it be clean for us? Check reviews. Need to hire a band. They sound good, but will they show up on time? Check reviews. I bought a new house last month. It’s time to hire a moving company. Is their quote real, or will I get a surprise $400 gas surcharge? Check reviews… I, like most people, would be much more inclined to “warn” other people after having a terrible experience with a business.

What if most of my reviews are positive?

One thing I noticed was how much weight I put on the negative reviews compared to the positive reviews. The negative reviews just seemed to scream out, “pay the most amount of attention to me!” The positive reviews seemed to stay very quiet, almost whispering, “These were posted by the owner, these are fake!” Almost every time I read a review for a moving company, a doctor, or even a stereo receiver at Best Buy, I always take a peek at the 5 star reviews, but I always click on the one star reviews as well. There is no doubt in my mind that one negative review outweighs 3-5 positive reviews.

I hear horror stories all the time from medical practices claiming they have been the victim of unfair, unwarranted, and possibly illegal fake reviews. I spoke with a plastic surgeon, who first called us for SEO, and then explained that his ex-girlfriend went online and posted dozens of fake reviews as a way of “getting back at him.” I also spoke with a client who had a number of negative reviews all based on the same procedure that he didn’t, doesn’t, and never has performed. He has his suspicions in regards to which one of his competitors wrote the reviews.

I am all for free speech, I believe if you have something negative to say about someone, you should have no problems putting your name next to it. People are being seriously hurt by fake reviews and Astro-Turfing.

Is suing the patient a smart form of medical reputation management?

While it is certainly one form, it’s most likely not the best form. I am not sure if suing a patient is the right thing to do or not. While I do not believe people should allow themselves to be walked all over, suing could bring personal damages to a whole other level. The number of people checking reviews is greater than ever. Anytime someone searches the name of this doctor, this story is going to come up. Along with this story, search results will also show this negative review, as well as any other negative review that may have been made concerning this doctor. This only draws more attention and increases exposure. Google’s algorithm and search engine optimization is set up in a way that this story will almost certainly dominate the web for the year to come. Not only will people see the negative reviews in my opinion, they may choose to not voice their opinion for fear of being sued.

What can I do to protect my practice?

Finding out what is being said about you and where it is being said is obviously the first step. It is best to bring in the staff to help you tackle this task that should take less than an hour. I suggest using staff, not only to save you time, but to inspire them to produce a level of service within your office that will proactively limit any future negative reviews.

In order to make sure you are getting actual real time results, I suggest you clear your cookies and cache on each computer that will be used to search. If you have been doing searches related to your practice such as “Plastic Surgeon Orange County” or “Sports Medicine practice St. Louis,” you may end up with the results you have recently reviewed, as opposed to the real-time results.

I suggest you use terms such as your name and every variation of it (i.e. Dr. Jones MD, Dr. Jones, Dr. David Jones, and Dr. David Jones MD). Also use the name of your practice, your phone number, and your address as key words in your searches. Run each one of these searches in Bing, Yahoo, and Google. Each of these search engines has its own algorithm and will produce different search results. Medical, Plastic Surgery, and Dental SEO do not return the same results in each search engine. Bing may miss something that Yahoo picks up, etc.

Once you have identified any negative reviews take note of them. Keep track of each by cutting and pasting the link into a Word file or an email you send to yourself.

Keep informed on what is being posted about you…but don’t pay for it! There are many services that, for a monthly fee, will monitor what is being said about you online. As far as I am concerned this is a waste of money. For absolutely no cost, you can set up Google Alerts. While it is important to know that Google will not always return everything that is being said about you, neither will any pay-for services company that I am aware of. However, Google will pick up most, and it is an absolute must that you get going with this right away. It always eats at me when people pay for services they can receive for free. If you are not sure how to set up these alerts, shoot me an email and I will be more than happy to show you.

At this point, hopefully you have identified any negative reviews or comments posted about you and or your practice online. At the same time, hopefully you and your staff have identified the patients who posted each of these reviews. If you have yet to identify the individuals, give another go at it. Most likely the same comments that were posted online were articulated to someone in your office.

I know who posted this comment, now what?

Do your best to contact them personally. A simple phone call will work best. Ask then to go over their issue with you over the phone. If it warrants setting up an appointment to visit with them in person, make sure you are not late for this appointment and plan to spend as much time as needed to hear the patient out. Time equals love for most of us. We feel good when people are willing to spend time with us. At the least, it will show you care.

Do your best to make the situation right! This does not mean giving them anything for free, however it might mean giving out your cell phone for any reason they may need it. It may also mean offering them a discount on future services. We have all had terrible customer experiences. Some of these experiences only made us more frustrated, while others made us feel much better and created an environment for us to want to continue doing business with the company or individual who originally upset us. Only you know the best way to right a situation. Using your own experiences will give you a good idea of how to turn the situation around.

Ask that the review/comments be removed or that an additional comment be made. I would never suggest you ask a patient to remove a negative medical review right away. Give it a little time and then ask. Frame your request with “can you do me a personal favor?” Everyone loves hearing a professional ask them for a favor. It makes us feel good; like we matter, and of course your patients do matter!

I have no idea who wrote the review.

If you don’t know who wrote the review, there are two steps to take. Both are equally important.

1) Contact the webmaster of the site. E-mail is usually the only option. Inform them you have tried to identify the patient, however you are unable to do so. Suggest that the review or comments are from one of your competitors or a disgruntled former employee. Ask them if they are able to identify the reviewer. Mention you do not need their personal information, but rather that you only want to make sure it is a real person with a real issue.

2) Post a rebuttal! Posting your own comments will show other readers that you care! Make sure to be non-confrontational in your comments. Ask the person to contact you at your office so you can make the situation right and hear out their issue. If I see a negative review but see a well written thoughtful, caring rebuttal, I actually give more value to it then I would to a positive review in the first place. The value here can be tremendous! Everyone makes mistakes, lets people down, and flat out drops the ball from time to time. This we all know. What we appreciate and respect is when someone takes action to make it right!

When Wendy Wester felt she was treated wrongly by a Bellevue doctor, she felt safe when she took her frustrations to Yelp, to send a negative review. Her target was Dr. Alan Brown, an orthopedic surgeon. Wester wrote that Brown misdiagnosed her knee injury, and because of the misdiagnosis, she says she suffered a blood clot, which could have threatened her life.

Wester said after she suffered torn ligaments from a skiing accident, Dr. Brown diagnosed her knee injury as a torn MCL, which would not require surgery. She said even after appointments with Dr. Brown the next day, her actual injury — a torn ACL — was not diagnosed until she went to another doctor.

She wrote that she suffered a life-threatening blood clot from the actual injury.

According to the Yelp review and court documents, Wester wrote: “His enormous ego nearly cost me my life. It is an understatement to say that I would not recommend him – ever.”

Dr. Brown, who also has a law degree, is now suing Wester for defamation. His suit, filed last week, says Wester made false and malicious statements, and damaged his business and reputation.

Wester’s attorney told KIRO 7 she had every right to publicly state her opinion. “She felt so strongly about what happened to her that she wanted to let other people to know what she had experienced and what her opinion about this doctor was,” said Seattle attorney Brad Davis. “I think (the lawsuit) is crazy.”

According to Dr. Brown’s suit, Wester was not merely stating her opinion. The title of the suit reads “Complaint for Intentional Interference with Contractual or Business Relations and for Defamation.”

“Everything my client said in the Yelp review was factual, was true, and or was opinion based upon her perspective.”Davis says that makes her Yelp comments Free Speech, protected by the First Amendment.

But it turns out, not everything posted on Yelp is legally protected. “It is whole new territory, uncharted territory, where the damages can be remarkable,” said Seattle University law professor Bryan Adamson, who says legally–Yelp opinions are protected–but if you get facts wrong–it could land you in court. “There are risks when you make statements,” he said. Professor Adamson says Yelpers should use caution. “If they say the wrong thing about the wrong person, and that person wants to sue for defamation, then that becomes a question of fact for a court to decide.”

Congress is now taking up a bill that would protect people who give businesses bad reviews online from expensive lawsuits.

Davis says his client will be vindicated. “I think ultimately the case will be dismissed in my opinion,” he said. “It’s ironic here that Yelp creates a forum to provide opinions, and yet this doctor has chosen to use Yelp as a basis for a claim of defamation,” Davis said.